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Carpenter-Barker v. Ohio Department of Medicaid

United States District Court, S.D. Ohio, Western Division

November 20, 2017

CYNTHIA CARPENTER-BARKER, as next friend of MEGAN CARPENTER, Plaintiff,
v.
OHIO DEPARTMENT OF MEDICAID, et al., Defendants.

          ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT (DOCS. 50, 52)

          Timothy S. Sack, United States District Judge

         This civil action is before the Court regarding the parties' cross motions for summary judgment (Docs. 50, 52) and their supporting memoranda (Docs. 53, 56, 57, 58, 60, 61).

         I. BACKGROUND

         A. Factual Background

         Plaintiff Cynthia Carpenter-Barker brings this action on behalf of her daughter, Megan Carpenter. Megan is a woman in her early thirties who suffers from multiple disabling medical impairments. Her condition is medically complex, with her diagnoses including, among others: encephalopathy NOS; general convulsive with intractable epilepsy; autism; profound mental retardation; cognitive impairment; hypothyroidism NOS; generalized muscle weakness; profound sensorineural hearing loss (deafness); ataxia; and sub-cortical myoclonus. (Doc. 6-1, at 2). Megan has impaired mobility, self- injurious behaviors, outbursts and aggression, and is unable to perform activities of daily living for herself. Id. Megan also suffers from seizures that require treatment with medication administered directly after a seizure (although the parties disagree on the frequency and severity of these seizures). Id.

         Megan lives with her mother and receives in-home nursing care seven days per week. Megan is enrolled in the Individual Options (“I/O”) home and community-based services waiver program through the Ohio Department of Medicaid (“ODM”), through which she receives homemaker/personal care services. (Doc. 1-2, at 2). The Butler County Board of Developmental Disabilities administers Megan's I/O waiver. Id. Megan is also enrolled in Medicaid's State Plan (“State Plan”) and receives 128 hours per week of private duty nursing (“PDN”) services through the State Plan. Id.

         The central dispute in this case revolves around the number of PDN hours Megan is afforded by the State Plan. Defendants' motion provides a helpful, neutral factual background on the nature of PDN:

PDN is a continuous nursing service that requires the skills of, and is performed by, a nurse for four to twelve hours at a time (subject to certain exceptions not relevant here). Ohio Admin. Code 5160-12-02(A). PDN is provided in a person's home, unless it is medically necessary for a nurse to accompany the person in the community. Ohio Admin. Code 5160-12-02(B). For individuals who are, like Megan, enrolled in a waiver program administered by the Department of Developmental Disabilities, ODM will authorize Medicaid coverage only after a “prior authorization” request is submitted and ODM determines, among other things, that the requested services are medically necessary. See Ohio Admin. Code 5160-12-02.3(C). Medical-necessity determinations are individualized, fact-based determinations. At all times relevant to this case, a service was medically necessary if it was necessary for the diagnosis or treatment of disease, illness, or injury and without which the patient could be expected to suffer prolonged, increased or new morbidity, impairment of function, dysfunction of a body organ or part, or significant pain and discomfort. Ohio Admin. Code 5160-1-01(A) (2014). A medically-necessary service also had to:
1) Meet generally accepted standards of medical practice;
2) Be appropriate to the illness or injury for which it is performed as to type of service and expected outcome;
3) Be appropriate to the intensity of service and level of setting;
4) Provide unique, essential, and appropriate information when used for diagnostic purposes;
5) Be the lowest cost alternative that effectively addresses and treats the medical problem; and
6) Meet certain general principles regarding reimbursement for Medicaid-covered services.

Ohio Admin. Code 5160-1-01(A)(1) - (6) (2014).

If ODM determines that requested PDN hours are medically necessary and meet other prior-authorization criteria, the Medicaid program will pay for up to the number of PDN hours approved, for a limited time period (for example, 30 PDN hours per week, for one year). See Ohio Admin. Code 5160-12-02.3(C)(2)(a). PDN may not be authorized for more than one year at a time. Ohio Admin. Code 5160-12-02.3(C) (“The period for which PDN authorization applies shall not exceed three hundred sixty-five days.”). If an individual wants PDN to continue past the end of a given prior-authorization period, she (or her provider) must submit another prior-authorization request. If ODM does not completely grant an individual's request for prior authorization of PDN, the individual is entitled to an administrative hearing called a “state hearing.” Ohio Admin. Code 5160-12-02.3(C)(2)(b); 5101:6-3-01(B)(6). If unsatisfied with the outcome of a state hearing, an individual may ask ODM to internally review the decision by requesting an “administrative appeal.” Ohio Admin. Code 5101:6-8-01(A). An individual may appeal the outcome of an administrative appeal to common pleas court pursuant to Ohio Rev. Code §§119.12 and 5101.35.

(Doc. 52, at 7-9).

         Pursuant to the process outlined above, ODM has reviewed the PDN hours authorized for Megan annually for several years. For the last decade, Defendants have consistently attempted to reduce the number of PDN hours authorized for Megan after each evaluation, arguing that ODM's evaluations of Megan demonstrate that Megan's condition can be managed adequately with reduced PDN time. Plaintiff has consistently fought against any PDN reduction using the administrative appellate system authorized by statute. (See Doc. 50, 13-16). Although Megan had been authorized 168 hours of PDN per week in 2008, she has lived with 128 hours since 2010. (Id. at 13). Plaintiff has thwarted ODM's annual attempts to reduce Megan's PDN hours each year since then, either through winning her cases on appeal or through negotiated settlements. (See Id. at 13-15).

         In December 2014, despite having reached, only four months previously, a settlement agreement with Plaintiff to continue Megan's PDN at 128 hours per week, ODM again issued notice to Plaintiff that it proposed to reduce Megan's PDN hours from 128 hours per week to 56 hours per week. (Doc. 21, at 11). This notice spurred Plaintiff to file the present suit.

         B. Plaintiff's Claims

         Plaintiff's amended complaint raised the following claims against Defendants:

1) A claim alleging that Defendants' frequent and continued proposals to reduce Megan Carpenter's PDN hours, most recently in 2014, amount to a failure to provide procedural due process in violation of 42 U.S.C. § 1396a.
2) A claim that Defendants' efforts to reduce Megan Carpenter's PDN hours violate the “integration mandate” of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132.
3) A claim that Defendants' efforts to reduce Megan Carpenter's PDN hours violate the “integration mandate” of the Rehabilitation Act, 29 U.S.C. § 794 et seq.

(Id. at 14-19). On December 12, 2015, the parties filed a “joint stipulation regarding scope of Plaintiff's request for relief and Defendants' fundamental alteration affirmative defense” that purported to clarify the exact relief Plaintiff seeks through this civil action. (Doc. 36, at 31-34). That document identifies the following as Plaintiff's claims for relief:

1) Ms. Carpenter requests that the Court assume jurisdiction over this matter.
2) Ms. Carpenter seeks through this lawsuit a declaration from the Court that Defendants' actions in proposing to reduce the number of hours of PDN services authorized for Ms. Carpenter through the State Medicaid plan in 2014 places her at risk of institutionalization in violation of the ADA and Section 504.
3) Additionally, Ms. Carpenter seeks an order from the Court requiring Defendants to reimburse the cost of providing Ms. Carpenter with the amount of nursing services she needs to prevent institutionalization or a risk of institutionalization. Ms. Carpenter intends to present evidence that she needs a total of 24 hours per day, 7 days per week of nursing services provided by a registered nurse or a licensed practical nurse under the direction of a registered nurse.
4) Further, Ms. Carpenter seeks an order from the Court requiring Defendants to refrain from attempting to reduce the number of hours of nursing services authorized for Ms. Carpenter unless or until Ms. Carpenter's treating physician determines that her medical conditions have improved such that her need for nursing services is ...

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